60 Ill. App. 481 | Ill. App. Ct. | 1895
delivered the opinion of the Court.
It is insisted that the Circuit Court did not have jurisdiction to enter this judgment, it being urged that it was not authorized to do so by the power of attorney. The power of attorney authorizes a confession of judgment for any rent due by the terms of the lease; the judgment was only for such rent.
Plaintiff in error urges that as the lease obligates the lessee to do many things besides paying the stipulated rent, as to pay all damages caused by waste of water, neglect or misuse of steam heating apparatus, and as the lease might be by the lessor terminated for a failure to comply with any of its terms, the amount due and owing under the lease is uncertain.
If this were so, still by the lease, as the amount of rent is fixed and certain, and the confession and judgment was for rent alone, no evidence was necessary in order to determine for what sum the lease and warrant of attorney authorized a confession of judgment.
The rent due under the terms of the lease was as clearly pointed out as is the sum due in a promissory note payable three years after date with interest payable semi-annually. In either case payments may have reduced the amount which otherwise would be due.
In the present, as in the case of a promissory note, the amount due is shown by the instrument and the efflux of time. If payment has been made, in whole or in part, the defendant may and should show it.
By the lease in question only the stipulated sum of 085 per month is iC rent;” all other amounts that may become due under the conditions of the lease, are not rent, but merely damages for breach of covenants. The case at bar is therefore unlike that of Little v. Dyer, 138 Ill. 272.
In that case all the amounts paid by the lessor for water rates and gas bills,"and for keeping the premises in a clean and healthy condition, became by such payment “ so much additional rent,” and due and payable as such; it-was thus by the face of the lease there considered apparent that how much “ rent ” was due could not be determined by an inspection of that document. In the present case the 66 rent ” is $85 per month, in no event more or less; and for “rent ” and nothing else, save attorney’s fees, and court costs, does the warrant of attorney authorize a confession; the power is to confess judgment for a certain and specified sum, as in Nichols v. Huyet, 4 Johnson, 423, it is said the power should be.
It does not appear that the evidence heard was concerning, nor is there anything tending to show that judgment was given for, anything but “ rent due,” as shown by the lease. The judgment was in accordance with the statute under the law as laid down in Bush v. Hanson, 70 Ill. 80, Seaver v. Siegel, 54 Ill. App. 632, and Herkmeister et al. v, Beaumont, 46 Ill. App. 369, and is affirmed.